Non-Solicitation and No-Poach Clauses in Influencer Contracts

A non-solicitation or no-poach clause in an influencer contract stops one party from using the collaboration to take over the other party's people or business. It actually covers two different situations that get blended together: the creator agreeing not to poach the brand's or agency's other creators or staff (non-solicitation), and the brand agreeing not to go around the agency or platform and contact the creator directly next time (non-circumvention). Most one-off collaborations need neither, but an agency or platform that makes its living introducing brands to creators typically needs at least one of them.

This is practical guidance from Make Influence, not legal advice. Have the specific clause wording reviewed by a lawyer, particularly if it names a specific employee or creator group.

Two different clauses under one label

"Non-solicitation" and "no-poach" get used almost interchangeably, but they protect two different things. Keep them separate when drafting — they're typically worded differently and rest on a different justification:

Both clauses restrict what a party may do after the collaboration — which is why they're legally closest to an exclusivity clause, just aimed at people and business relationships instead of competing brands. See the contract checklist for where these terms typically sit in a contract, if they belong at all.

Non-solicitation: when the creator can't poach others

This clause shows up in two situations most often: an agency or platform that doesn't want a creator on its roster actively talking other creators into switching to a different deal or a different agency; or a brand that doesn't want a creator who's had close access to its marketing team during a long-running ambassador deal to use that access to recruit team members for a different job. Both are rare for a single one-off collaboration, and become more relevant the closer and longer the relationship runs.

A well-drafted non-solicitation clause needs to be specific about what it bans: active, targeted recruitment — not the fact that one creator happens to know another, or mentions a different agency in an ordinary conversation. A clause broad enough to ban any contact at all is hard to enforce and unnecessarily restrictive for a creator who hasn't actually done anything wrong.

Non-circumvention: when the brand can't bypass the go-between

This is the clause actually at stake most of the time an agency or platform calls its own contract "no-poach" — but it protects something other than people: it protects the go-between's business model. The situation: an agency or platform introduces a brand to a creator. The collaboration goes well. Next season, the brand contacts the creator directly, bypassing the go-between, saving the fee or commission — but without the work the go-between put into finding, vetting and briefing the creator in the first place.

A non-circumvention clause fixes this by requiring the brand either (a) to keep using the go-between for collaborations with that specific creator for an agreed period after the introduction, or (b) to pay the go-between a fee if the brand does enter a direct deal with the creator during that period — typically calculated as the commission the go-between would have taken on the direct collaboration. The second option is by far the more common in practice, because a court is unlikely to enforce an outright ban on contracting with a specific person, but will more readily enforce a payment obligation.

See agency vs. platform vs. in-house for how the three basic models differ — non-circumvention matters most for exactly the agency and platform models, because they're the ones the clause protects, not a brand's own in-house team.

What does Danish law actually say?

The most common misconception is assuming Denmark's Act on Employment Clauses (lov om ansættelsesklausuler, Act no. 1565 of 15 December 2015, in force from 1 January 2016) protects a creator the same way it protects an employee — including the right to mandatory compensation for accepting a restriction. As a starting point, it doesn't, and the difference is worth knowing before either drafting or signing one of these clauses.

The Act on Employment Clauses does have one provision that reaches beyond ordinary employees: it also lets managing directors and other self-employed individuals who have undertaken a non-compete obligation get an unreasonably broad clause set aside. But under Danish case law, that extension is conditional on the clause having been entered into "in connection with an employment relationship" — typically a former employee who becomes a self-employed consultant for the same company, or a co-owner with a tie beyond the pure commercial deal. An ordinary, arm's-length contract between a brand or agency and a creator, with no employment or ownership relationship, falls outside that extension.

The conclusion: a non-solicitation or non-circumvention clause in an ordinary influencer contract isn't covered by the Act on Employment Clauses — neither its compensation requirement nor its special override rule. It's assessed instead under ordinary contract law, the same place as a kill fee clause or an NDA: Section 36 of the Contracts Act lets a court set aside or moderate a clause that's unreasonably broad in scope, duration or effect — without the statutory compensation requirement that applies to an employee.

Decision framework: do you even need the clause?

IF you're an agency or platform that introduces brands to creators for a fee or commission → consider a non-circumvention clause with a time-limited period and a clear payment obligation as the alternative to an outright ban.

IF your creator works closely with your internal team over a long period (e.g. a standing ambassador deal) → a short, specific non-solicitation line about staff can be relevant.

IF the collaboration is a one-off gifted-product post or a short campaign with no introduction or go-between role involved → neither clause is typically necessary.

IF you're the creator being asked to sign a broad clause → ask for it to be scoped to named people or a specific period, rather than a general wording that effectively reads like a ban on practicing your profession.

Worked example (hypothetical)

The figures below are a made-up worked example to illustrate the point — not a real customer case, and not rates Make Influence uses or recommends.

An agency introduces a creator to a brand for a campaign fee of DKK 30,000, of which the agency takes a 20% commission (DKK 6,000). The contract includes a non-circumvention clause running 12 months from the introduction: if the brand enters a direct deal with the creator during that period, bypassing the agency, the brand owes the agency an amount equal to the commission the agency would have taken on the direct collaboration. Nine months later, the brand signs a new, direct deal with the creator for DKK 40,000. Without the clause, the agency would get nothing from that fee. With the clause, the brand owes the agency 20% of DKK 40,000 = DKK 8,000 — calculated as the commission the agency lost, not as a penalty.

Common mistakes

• Assuming the Act on Employment Clauses protects the creator as if they were an employee. As a starting point it doesn't — see the section above.
• Wording the clause as a general contact ban instead of a ban on active recruitment. That makes it both harder to enforce and needlessly restrictive.
• Using an outright ban on direct collaboration instead of a payment obligation. A court is typically more willing to enforce a payment obligation than a ban on contracting with a specific person.
• Confusing non-circumvention with exclusivity. Exclusivity limits which other brands the creator can work with — non-circumvention limits whether this brand can bypass the go-between. See exclusivity clauses in influencer contracts for that one.
• Setting no time limit. A clause with no expiry date is both harder to defend as reasonable and an unnecessary source of friction for the other party.

Make Influence's operational perspective

Our experience is that a payment-based non-circumvention clause — rather than an outright ban — is far easier for both sides to accept and actually follow. A brand that knows exactly what going direct costs can do its own math on whether it's worth it, while the go-between still gets its share of the value the introduction created. We generally recommend short, specific wording over a broad restraint, whichever of the two clause types is in play.

FAQ

Is a non-solicitation clause the same as an exclusivity clause?

No. Exclusivity limits which other brands the creator can work with during a period. Non-solicitation limits whether the creator can recruit other people — typically other creators or staff — not which brands the creator can personally work with.

Does the clause mean a creator can't recommend other creators to the brand?

Only if it's worded that way. A well-scoped clause bans active, targeted recruitment — not an ordinary recommendation the brand chooses to follow up on itself.

Can a Danish court set aside an unreasonably broad non-circumvention clause?

Yes, under Section 36 of the Contracts Act, the same way it can for an unreasonably broad kill fee or NDA clause. A clause that binds the brand for too long, or to an amount far exceeding the go-between's actual lost commission, sits on weaker ground if it's ever tested.

Does a creator have a right to compensation for accepting a non-solicitation clause, the way an employee does?

Not automatically. The Act on Employment Clauses requires compensation for employees; an independent creator in an ordinary commercial deal isn't covered unless the parties agree to compensation themselves.

Should a brand's own in-house team worry about non-circumvention?

Rarely. The clause typically protects an agency's or platform's role as the go-between — a brand running the programme itself, with no outside go-between, has nobody to bypass in the first place.